Implied Consent Re-Advisement | Charlotte DUI Lawyers

Implied Consent Re-Advisement Rights

So what is implied consent re-advisement all about?

In North Carolina, failure to advise a defendant of their implied consent rights in DWI case can result in the suppression of chemical analysis results on the statutory violation. Furthermore, until recently, the North Carolina appellate courts had been consistent in their rulings that the results of an implied consent test carried out without the defendant having first been advised of her implied consent rights are inadmissible.

In fact, the court of appeals reaffirmed this principle last June in State v. Williams, __ N.C. App. ___, 759 S.E.2d 350 (2014). In that opinion, the Court held that the State’s failure to re-advise the defendant of his implied consent rights before conducting a blood test mandated suppression of the test results. All was well and settled, at least until now. In one of the last decisions of 2014, the Court of Appeals either clarified or confused this otherwise established rule by finding there could be certain, very fact-specific, exceptions.

The latest pronouncement is State v. Sink: 

The issue present here involves implied consent re-advisement and whether the State’s failure to re-advise the defendant of his implied consent rights before drawing his blood for chemical analysis required suppression of the test results. This defendant had earlier refused to submit to a breath test after having been properly advised.

The court of appeals confronted this same basic fact pattern in Williams and deemed in that decision that suppression was the remedy as G.S. 20-139.1 (b5) requires that a person “again be advised of the implied consent rights in accordance with G.S. 20-16.2 (a)” “if a subsequent chemical analysis is requested.”

Further, the court in Williams court patently reject the State’s argument that suppression was not warranted, as the violation was merely “‘technical and not substantial and the defendant shows no prejudice.’” The Court held appropriately that a failure to advise “cannot be deemed a mere technical and insubstantial violation,” since “[t]he State was required to re-advise defendant of his implied consent rights prior to the second chemical analysis test—a blood test.”

But now, in Sink, the Court concluded that suppression of test results here was not required based on the distinction that Mr. Sink, after initially being advised of his implied consent rights, refused a breath test but stated he “would give a blood test.” In Williams, the defendant made no such statement but did sign a consent form for the blood test. Confused so far? Stay with us.

So what makes the difference here?

Well, the Court opinion indicates the statement effectively means Mr. Sink volunteered to submit to blood testing. As a result, because the officer did not technically request the test, the defendant’s statutory right to be re-advised of his implied consent rights “was not triggered.” You almost need a barber’s license to split hairs that finely. Defendants rarely know their rights, much less the process. In fact, the type of chemical testing offered is the choice of law enforcement.

After all, it is the State’s burden of proof and their discretion as to how they prepare their evidence…

See G.S. 20-16.2 (c) (stating that “law enforcement officer or chemical analyst must designate the type of test or test to be given). Had Mr. Sink made the request for a blood test for his own purposes, the officer would not be required to transport him to the hospital, and the State Crime Lab would not have to expend its limited resources in analyzing the sample. Cf. State v. Bumgarner, 97 N.C. App. 567 (1990) (concluding that law enforcement officers’ refusal to take the defendant to the hospital for additional testing or to withdraw blood for later testing did not violate the defendant’s statutory rights under G.S. 20-139.1).

The facts in Sink further reveal…

Mr. Sink was taken to a local hospital and was placed on a gurney where he fell asleep. A technician came into the room, awakened Mr. Sink, and told him his blood was going to be drawn. This factual scenario seems more consistent with the withdrawal of blood pursuant to an officer’s request—not the defendant’s.

Perhaps the Court’s ruling can be understood in the broader context of the Defendant’s history. Mr. Sink appears to know his testing rights and his options, including the right to refuse testing. Mr. Sink should know the procedures as he was also indicted for habitual impaired driving as part of this latest arrest.

So what should Charlotte DUI attorneys take away from this case?

Little facts really can make a big difference in outcome. Every detail and nuance can potentially matter. And, all clients should exercise their right to remain silent. This case is so fact specific, I am not certain there is any change in the law or required procedure. The most prudent and still statutorily required course of action for law enforcement officers is to always re-advise defendants of their implied consent rights before carrying out subsequent testing.

When prosecutors argue technical mistakes, the retort is the same. How difficult is it for law enforcement with proper training to follow the law? The State makes the law and the rules. Follow proper procedure or risk appropriate challenge to suppress any fruits of the poisonous tree.